The Anti-Defection Law: An alternative of Mockery of the Democracy Legal Research And Analysis Blog %

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The Anti-Defection Law: An alternative of Mockery of the Democracy

by Rameez Reza Alig. & Mohd. Iqbal

Overview:

As India is one of the largest democracy in the world, having also the biggest youth oriented country but while going through level of the society. You will observe; this as much is personified in the global face, is as much unstable & scattered government too. Country like India enjoys representative democracy where people surrender their will & rights, elect representatives who are supposed to act on their behalf of interest while making or amending laws for that specified society. As a result, what do we get? The only thing in the name of development is the defection of a legislator where he or she changes his allegiance to the other party only for some monetary benefits or other forms of greed or post in that party or government. As a representative takes oaths while taking space while joining any political party, he never thought about his responsibilities that he had been chosen or elected for. There may arise more questions like this but who cares about all that? Though Defection isn’t today’s problem, it has been the problem of all the times especially around the 1960s. In the beginning, the rise of coalition politics or government increased the incidence of defection for the sake of some sorts of post whether it may be ministerial or else. This reached an extreme position, when Gaya Lal, a legislator from Haryana changed his allegiance thrice in a single day. The infamous “Aaya Ram, Gaya Ram”^{^[1]} slogan was coined against the background of continuous defections in 1967. Since then, to till date it’s been a disastrous loophole for society. So finally, we got a new law, The Anti-Defection law, 1985^{^[2]} or 10^th Schedule added to the constitution by 52^nd Constitutional Amendment Act.

Why we needed the ADL:

As we are discussing right now, why we needed such a law after three decades of post-independence or what were issues then might be. So in furtherance, here are the reasonable reasons behind the act or call as the primary intentions;

To curb political corruption: Corruptions in terms of breaching of trust or changing his allegiance for some pity greediness without thinking of their responsibilities towards voters by everyday legislators in the house.

To strengthen democracy by bringing stability to government: As defections affect the normal functioning of the government and also indirectly ruling party’s inter-party notions from which the existing governmental activities are being served.

To stop promotion of Horse Trading in Politics: Here, Horse trading means such activities in politics where a party who has lots of backups in their banks or in terms of muscle power, are just playing games with hopes and trusts of lovely people in their respective constituency to fulfill his prejudiced goals. Whether to break or breach an existing alliance or party.

To make legislators more responsible & loyal to the party: As the term “Political Party” is not mentioned in the constitution but still it is supposed to be the most root or essential platform to forming a government in a democratic country. The banner under which people unite and represent the some constitutionally demarcated constituency. In this way, there is a need for a candidate to be loyal and responsible towards their respective political party while serving the society & nation.

In view of all this, and to tackle this rampant of political defection in 1967, the then prime minister Indira Gandhi formed a new committee under the chairmanship of Y.B Chauhan^{^[3]}. The committee submitted its report in 1968, which led to the first attempt to make a new Anti-Defection Bill in parliament. Later, in 1984, after securing a clean majority, Rajiv Gandhi proposed the new Anti-Defection Bill in the house. Finally after marathon debates in both Rajya Sabha & Lok Sabha unanimously approved the bill on 30^th & 31^st January, 1985. The bill got approval from the president on 15^th February, 1985 & at last the act came into effect on 18^th March, 1985.

Thus, Anti-Defection Law, 1985 or 10^th Schedule inserted in the constitution by 52^nd Constitutional Amendment Act, 1985^{^[4]}:

The law laid down the procedure of disqualification of a legislator on the ground of defection by the Presiding Officer of the house which was based on a petition by any legislator in the parliament or state assemblies.
All the decisions regarding disqualification of a legislator lies in the jurisdiction of the Chairman or the Speaker of the house, and also decreed his decision would be full & final.

The Anti-Defection Law applies to both Parliament and state assemblies of any state.

Disqualification on ground of defection of a political party, if any:

A legislator voluntarily given up the membership of his political party, or
A legislator votes, or abstains from voting in the legislature, contrary to the directives of his party. Though, if the legislator has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be subject to disqualification.
If an independent candidate or representative joins any political party after the post-election.
If a nominated candidate joins a party after six months he becomes a member of the house whether parliament or state assemblies.

Exceptions under the law:

Legislators can change their allegiance without the risk of disqualification towards any other party in the following cases:

The law allows legislators to merge with another party or to be a separated identity if at least two-thirds of legislators of its party are in favour of merger.
In such a circumstance, neither the members who changed their allegiance to merge, nor the ones who decided to stay with the original party will face disqualification.

Meanwhile, the law or 10^th schedule challenged at honourable Supreme Court firstly, with argument that this law is ultra vires & also curtails right of freedom of speech & expressionof legislators and secondly, regarding Judicial Review of the law as it is one of the Basic features of the constitution. As earlier there was no provision of judicial review in such an act or law.

So finally, in Kihoto Hollohan vs Zachillhu (1992)^{^[5]} case apex court upheld the validity of the 10^th schedule & the decision of presiding officer regarding defection of any legislature shall be subject to judicial review. Once the speaker makes a decision, shall be open to judicial review.

Moreover, once again in 2003 by then prime minister Atal Bihari Vajpayee it was felt needed to amend some clauses of the existing law as there were rising cases regarding merger concept and resignation in the parliament thus, controversy laid the foundation of such amendment again. Finally, by 91^st Constitutional Amendment Act, 2003 parliament extended some provision which are followed:

The act limited the size of council of ministers to strengthen the ADL with limiting that a council’s members can’t more than one third of total no of legislators in the house.
Also changed the merger rule by one third to two third.
Debars a defectors from entering or holding any “Remunerative political Post” (RPP) for the remaining tenure of the legislator unless he is re-elected.

In addition to all that one, there was another argument & case regarding Who can complain? to the speaker about one’s disqualification. So again in 2003, in case Speaker, Odisha legislative assembly vs Utkal Kesri Parida^{^[6]}, the apex court held that;

“Any legislator alone no but, any voter who has locus standi to file a complaint seeking disqualification.”

Issues or challenges of the ADL:

Against the tenacity of representative democracy: The reason behind this law is to secure stability of government by stopping and ensuring defection activities in legislation.

Impedes legislative control on government: The ADL affects the function as vote based on the decision taken by the party leadership or by under the whip.

So, sometimes legislators can’t vote independently as the law prevents them from doing so.

Anti-defection law, in short, dilutes the separation of power between executive and legislative thus, it centralizes power in the hands of executive.

Role of the speaker or chairman: Going through law legislators may be subject to disqualification on grounds of defection or such activities based on a petition by any legislator or other member of the house.

Although, there have been many cases since earlier times that speaker seemed biased while deciding cases of disqualification.
Also, The ADL doesn’t mention a time period for the presiding officer to decide on a disqualification plea.
Sometimes, decisions are also based on the whims and fancies of the speaker or ruling political party.

Affects the debate and discussion: In democracy, debate and discussion seem to be the most core and vital features but this law has created a democracy of parties and members, rather than a democracy of debate and discussion in India.

Steps to be taken or Solutions:

Rational use of the ADL: Many experts have suggested that the law should be valid for only those votes that determine the stability of government i.e-situations like non-confidence.

Advice of election commission: there are many commissions including “National commission to review the working of the constitution” (NCRWC) has recommended that disqualification rather than by the presiding officer should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of Election Commission (EC).

Definite time period for the disqualification procedure: As in law still not mentioned the proper time limit for the entire disqualification procedure yet.

Due to the same, recently as always in Manipur, Karnataka, Madhya Pardes faced lots of problems or delay regarding disqualification of the defected MPs or MLAs, and also have been seen as speakers belonging to the ruling party or from the party who are dominant in the house.

Independent authority to deal with disqualification: In Kihoto Hollohan vs Zachillhu (1992)^{^[7]} judgement justice Verma said that due speaker’s biased activities,we need an independent authority to deal with such cases of defection.

Resignation for the whole tenure of the house: As resignation is also one of the loopholes of the existing law, as once a legislator got disqualification from a party with the help of another party he re-elect & enjoys the post later.

In this regard, some scholars also have suggested that if one resigns, he should not be allowed to enter the house for the remaining term of the house.

Promoting the principle of Intra-party democracy: In view of all this, India’s 170^th Law Commission^{^[8]} also commented on the importance of intra-party democracy by arguing that a political party can’t be a dictatorship internally & democratic in its functioning externally.

So, The party should listen to the opinions of the members & should have discussion on the same. Doing this, would promote intra-party democracy while having full freedom of speech & expression.

Conclusion & the reform:

On the whole , The Anti-Defection law still needs to be amended as there is a dire demand to reform the law. Going through its all aspect whether constitutionally or through that plea which have been challenged the law from the very initial to till date, though Supreme Court also once regarding case of a legislator’s rights, by a majority of judgement held that “Sometimes unprincipled & unscrupulous political defections are to be contained & the legislators’ freedom of speech and expression can be responsibly curtailed for the larger interest of the nation”. The members who fought and won their elections under the banner, programme & policy of that particular political party, are not supposed to change their allegiance in a mid way of a tenure .

The political instability shared by large scale defections which is in fact a threat to democracy which many a time reduced the concept of democracy which many a time reduced the concept of democracy to a mockery of the shame.

On the other hand a few things more here, is on which parliament should rethink once again, are following in detail:

There should be a prescribed time limit to decide a case regarding any disqualification plea.

There should be a transfer of the entire matter of disqualification through the speaker to another independent authority. As here, it seems & undesirable & against all modern civilized notions of justice that the speaker be adjudicating authority on the issue of disqualification of elected members.

In this regard, The 170^th Law Commission^{^[9]} also suggested the same things as aforesaid.

India, having representative democracy, is also one of the countries among 23 Commonwealth Nations across the globe. Where the entire system is based on people’s elected political party systemthere, resignation also should not be allowed at least for the remaining terms of the house. Because, mostly due to muscle or corrupted power, a legislator resigns, soon gets re-elected & enjoys wanted political post later. If doing this isn’t a mockery of democracy then what would we say?

At last, some of the pioneer scholars, political scientists & constitutionalists also have suggested through times the same sorts of things.

Lastly but not least, the Merger concept too should not be allowed. In such a tragedy case, there are two things both are subject to consideration.

Firstly, For a big full fledged political party, it’s tough to break them by any external power but,

Secondly, for a party having a small number of members or legislators it is very easy to break them. So, in this regard it has also been suggested that merger should not be allowed.

Considering all of the above, we can say it’s all which still seeks to be amended in such a law otherwise, as always in spite of the presence of such law here the mockery of the democracy will continue.

^[1] https://www.prsindia.org/tags/gaya-lal

^[2] http://legislative.gov.in/constitution-fifty-second-amendment-act-1985

^[3] Law Commission of India, “104th Report of Standing Committee on Home Affairs, 1967” (1992)

^[4] The Constitution (Fifty-second Amendment) Act, 1985

^[5] Kihoto Hollohan vs Zachillhu And Others on 18 February, 1992

^[6] Speaker, Orissa Legislative … vs Utkal Keshari Parida on 17 January, 2013

^[7] Kihoto Hollohan vs Zachillhu And Others on 18 February, 1992

^[8]8 Law Commission of India, “170th Report on Reform of the Electoral Laws, 1999” (May, 1999)

^[9] Law Commission of India, “170th Report on Reform of the Electoral Laws, 1999” (May, 1999)

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